Case name:
Dumbe Transport CC v Alex Carriers 2011 (3) SA 664 (KZP)

Area of law:
Costs – The effect of tendering costs prior to trial and the content of an offer of settlement.

Brief facts/summary:
The case dealt with a motor vehicle collision that occurred between the Plaintiff and the Defendant, with both parties denying liability for causing the collision. The parties agreed that only the merits will be argued at trial as they were able to consent to the quantum of their respective damages.

The Defendant, however, tendered costs two days prior to the trial. The Defendant’s offer of settlement apportioned liability 75:25 in favour of the Plaintiff, with the taxed or agreed costs to be paid on the same proportion. The plaintiff did not accept the tender and the matter went to court.

The court held, on the merits, that the damages should be apportioned 75:25 in favour of the Plaintiff. On deciding the question of costs, the Defendant argued that, since the tender by the Defendant was the same as that which the court awarded, the Plaintiff should be liable for the costs incurred.

Although it is generally accepted that costs follow the result, the question was whether the tender by the Defendant should influence the final costs order.

The court found that, had the Plaintiff accepted the tender proposed by the Defendant, the Plaintiff would have been prejudiced by such acceptance as the Plaintiff would not have been able to recover a significant portion of its costs.

The Plaintiff was therefore under no obligation to accept the tender, and costs for the action were therefore ordered in favour of the Plaintiff.

Importance/value:
The importance of this case is that it highlights the significance of the structure and content of an offer of settlement.

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